SUCCESSION PLANNING:
A GUIDE FOR THE WARY
EMPLOYMENT
QUICK V CORNWALL COUNCIL
Mrs Quick was a primary school head teacher. The local authority
was restructuring four local schools, and spoke to Mrs Quick
about her future plans. Some of those discussions included
mention of her plans for retirement, which the authority envisaged
would be early retirement under a compromise agreement. Mrs
Quick was over 60 at the relevant time.
When Mrs Quick was eventually dismissed, she alleged those
discussions constituted direct age discrimination, on the basis
that a younger head teacher in her position would not have faced
questions about their retirement plans.
The Employment Tribunal rejected those allegations, finding that
the authority was doing nothing more than sensible succession
planning in the context of the wider restructuring that was taking
place. Since Mrs Quick was not being forced to take early
retirement, and any settlement would need to be agreed with
her, the Tribunal concluded the discussions were a normal part of
management planning.
Although this is a helpful decision, which reflects the commercial
realities many businesses face, there are some cautionary points
to note:
ŠŠ The decision is at Employment Tribunal level only. There
is not yet any higher judicial authority supporting the
conclusions reached in this case.
ŠŠ The Tribunal’s reasoning may be suspect on some points.
For example, one of the comments complained of was that
Mrs Quick was told “too many people carry on after they
should have retired”. Many lawyers would regard that sort of
remark as ageist discrimination.
ŠŠ Mrs Quick had made tentative enquiries about retirement,
so it may be that the Tribunal allowed the employer more
leeway than it would in other cases.
LESSONS FOR THE FUTURE: TOP TIPS FOR EFFECTIVE SUCCESSION
PLANNING
ACAS (which issues best practice guidance in employment
matters) recommends asking all employees similar questions as
part of an annual appraisal, seeking the individual’s own views
about their short-, medium- and long-term aims. The idea is
that this process will elicit enough information for you to make
informed management decisions about career progression,
succession planning and workforce structuring.
Some companies prefer a slightly different approach where
retirement is only raised with older workers. Although the case
summarised in this article lends support for that strategy, there
must be a risk that only covering retirement with older staff will be
perceived as ageist and, whether or not technically permissible,
will affect employee relations and/or the Tribunal’s general
approach in any litigation.
So, our top tips are:
DO
ŠŠ Ask about long- and short-term objectives. Short might
mean the coming appraisal period, with long-term plans
covering anything beyond that.
ŠŠ Keep to a clear structure during appraisals, to avoid getting
drawn into discussions that might be discriminatory.
ŠŠ Ensure performance management is:
-- consistent for all employees regardless of age;
-- clear, so employees know exactly what is expected
of them;
-- objective, so that assessments are less open to
challenge; and
-- robust, so that issues are addressed as they arise,
without being left to fester.
ŠŠ Put accurate documentation in place to support the
performance management process, and train managers so
that they implement the process properly.
DON’T
ŠŠ Use derogatory or belittling language, even in jest. Phrases
such as “Can’t teach an old dog”, “He’s past it”, “I bet they
didn’t have this in your day” etc. carry great risk.
ŠŠ Make the assumption that performance will decline as
employees get older.
CONTACT DETAILS
If you would like further information or specific advice please contact:
SEÁN LAVIN
DD: +44 (0)20 7849 2695
[email protected]
HAYLEY ROBINSON
DD: +44 (0)20 7849 2969
[email protected]
JANUARY 2013
MACFARLANES LLP
20 CURSITOR STREET LONDON EC4A 1LT
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This note is intended to provide general information about some recent and anticipated developments which may be of interest.
It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained.
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